December 30, 2004

How Appropriate

Lawrence Lessig's Code, a book about how the structure of the internet may enable regulation, is going to be updated into a second edition with the help of a Wiki, i.e. open-source editing, and some volunteer "Chapter Captains" to ride herd on the process. Similar ideas have been floated before, especially with reference to Lessig, so this announcement is delightful but unsurprising. (Via Orin Kerr.)

Certainly some recent trends make Code ripe for a new edition. One example that came to mind immediately was the frustration of music-downloading by two methods: flooding networks with bogus files (what seems to be a kind of regulation by code) and lawsuits and legislation (regulation by law). To hear people argue the question of law versus code, listen to Prof. Epstein of Chicago debate Prof. Moglen of Columbia regarding Intel v. Hamidi.

Much Ado About Judging

It's almost become an unwritten rule that if you don't have something to say about the nomination of Federal judges you're not fully a member of the blogsphere or at least the blawgsphere (Howard Bashman does an excellent job of keeping tabs on most such commentaries). Well, I suppose it's time for me to satisfy this rule.

This week I had two interviews with U.S. District Court judges for summer externships. While I could ramble for hours about the subway rides in LA, the panic in the eyes of Angelinos as Stormwatch 2004 is proclaimed with a few inches of rainfall, etc., I'll limit myself to the less interesting stuff. Specifically, during the application process I learned that Judge Percy Anderson was one of the first nominees by the President to come up through a bipartisan nominating commission set up by Sens. Feinstein and Boxer of California with the administration.

After some soul searching (which would not have really happened had PG not prodded me to do so) I've come to the conclusion that this is actually a very brilliant idea, but it can only work at the District Court level. Needless to say the benefits for Democrats in the Senate and elsewhere are obvious. Any system that makes the appointments less politicized is good because it means the nominees are not as political. More generally, this approach is very decentralized, meaning nominees will have strong ties to the areas in which they will preside. While this has not been a problem in any particular administration, it is something worth noting because it ties in to my next point. The process brings nominees to the bench who reflect the local population's views to the extent they matter. To illustrate, imagine if someone like Judge Pickering was nominated to the Central District of CA. All hell would break loose. Did any such thing happen when he was a district judge in Mississippi? Nope. Anyway, you get the idea.

Now I don't know anything about Judge Anderson's rulings or his party affiliation, but I know his nomination did not draw any negative attention to the administration. On the contrary, it has kept Democrats in the Senate quite pleased (see e.g. Pat Leahy's remarks during the hearing). As such, Dems do not have any ammo to contest most nominations...even the ones that really should be contested. This is why the commission process is a stroke of genius.

Naturally, I considered the process at the U.S. Court of Appeals and for the SCOTUS. Unfortuantely all nominations to those courts are fairly highly politicized. Any bipartisan commission that's created will simply add an extra layer of bickering. This time even before nominees are announced people will have to fight political battles. But the larger question that I myself have not answered is why? Why do we care so much about these nominations? Clearly these courts make some decisions that are important to us who have political views one way or another. Yet those decisions are an incredibly small percentage of all decisions made. Even at the SCOTUS, how many times a year would we hear something about a decision handed down if we were not in the legal community? Ask the lay person what recent decisions come to mind...affirmative action, Gore v. Bush, and maybe sodomy if they religiously listen to Nina Totenberg or something. If such few decisions matter, then worry about who sits on the court? Are these decisions really THAT important? Do we as a society really care more about getting into law school than presenting an ID to a police officer?

So the problem of the day is, how is it that a bipartisan commission system could never work for the higher courts when all indications are that it should?

What's in a Pledge?

The reports on donations made to earthquake/ tsunami relief efforts describe the amounts given in two ways. This Washington Post article says, "At Amazon.com alone, more than 53,000 people had donated more than $3 million by yesterday evening after the company made an urgent appeal on its home page." A few paragraphs later, a different term comes into play: "From Aug. 13 to 23, the Red Cross estimated that it received $19 million in pledges for victims of Hurricane Charley."

"Donated" versus "pledged" -- I'd think the difference was immaterial, except that Contracts successfully ground into my brain that most of the problems in transactions arise when there's a gap between the promise made and the promise carried out. And the New York Times (via Chris) emphasizes the point:

Making things worse, we often pledge more money than we actually deliver. Victims of the earthquake in Bam, Iran, a year ago are still living in tents because aid, including ours, has not materialized in the amounts pledged. And back in 2002, Mr. Bush announced his Millennium Challenge account to give African countries development assistance of up to $5 billion a year, but the account has yet to disperse a single dollar.

Mr. Bush said yesterday that the $35 million we've now pledged "is only the beginning" of the United States' recovery effort. Let's hope that is true, and that this time, our actions will match our promises.

The one other thing I got out of contracts is the need for a Consideration, and pledges of aid by definition are gratuitous and therefore unenforceable, so the only way to make people keep those promises is with shame.

Answer: Elitism

What I think perhaps both Armen and Will Baude are missing in their posts about affirmative action and law school admissions is that very few people who are capable of doing law/ law school actually are deprived of the chance to do so, even without affirmative action.

As I explained to my cousin when he was applying to medical school while I was applying to law, "I will go to a law school, whereas I probably couldn't get into a med school." The people I know who have been rejected from American medical schools all could go to an ABA-accredited law school. That's not what affirmative action is for.

Affirmative action is for getting underrepresented groups into the "elite" schools. Y'all know what I'm talking about. I had people look at me with surprise when I mentioned that I'd applied to the University of Houston -- a school that was #1 for health law in the benighted U.S. News rankings -- because it's not a top 50 school.

There are many law schools from which thousands of people graduate, pass the bar and practice soundly, schools whose names may not be well-known but that do a perfectly good job at cranking out lawyers. Once you pass the bar, you have access to The Law.

What you don't have access to, if you graduate from these non-elite institutions, is the easier route to money, influence and power. The highest-paying law firms don't recruit there; the elite schools look askance upon wannabe professors with degrees from them; the federal judiciary is none-too-kind to the graduates of "fourth tier" schools. I wager that even the objective, fair-minded folk populating law review editorial boards tend to assume that a Harvard Law student's submission will be superior to that of Southern New England School of Law student's.

Scheherazade recently posted about her choice of a non big-name law school, and I've posted before about the potential advantages offered by what happened to be a lower-ranked institution. While most of my classmates were as limited as I was in the range of law schools to which they applied -- indeed, many were more so -- I did speak to one classmate's wife, who is attending a school not in the "top tier," and she seems to be getting a much stronger hands-on education than the Ivy Leaguers. Already she's meeting people who need legal help; we're fully occupied with the long-dead (but apparently still cursed) Mrs. Palsgraf.

This post has gone off-course. Right, I meant to talk about the actual use of affirmative action: for access to the higher-level institutions. I hope that this does not come across as rude or insulting to any readers, but the current standards of community colleges ensure that, as Chris Rock put it in somewhat cruder terms, the whole community is welcome. Community colleges don't use affirmative action because they are so easily accessible that it is unnecessary.

Whatever one might think of Scalia's opinions in the Grutter/Gratz decision, his oral argument criticism that the University of Michigan would not need affirmative action did it not insist on being an "elite" institution, as judged by the test scores and GPAs of its applicants, seems to me a very accurate one indeed. The plaintiffs in those cases could whine about being unjustly excluded ("Daddy, I didn't get into Michigan!" "Don't worry honey, we'll sue their asses") only because their numbers fell within the correct range for admission. If Michigan instead had admission open to everyone with a 3.0 GPA and a 50th percentile test score, and used a lottery to award seats among those thus qualified, the school's racial composition would reflect that of the population probably even better than it does with elitist standards and affirmative action.

Despite my own support for affirmative action -- especially now that it has paid off for me! -- I disagree with Armen that without it, and with a "traditional merit-based only" system, "access to something as powerful as a legal education is denied to certain segments of society." If you can speak English and will be able to pass the bar eventually (and have graduated from an accredited undergraduate institution), you will get into a law school. The barriers aren't so high as to impeded basic access.

(FYI to Will: Arizona permits people to practice law without even passing the bar exam; and as previous noted, New York, California, Maine, Vermont, Virginia, Wyoming, and Washington permit people to join the state bar without having graduated from law school.)

December 20, 2004

What Exactly Are We Affirming?

In today's LA Times, Boalt Prof. (Young) Goodwin Liu has an op/ed piece countering some of UCLA Law Prof. Rick Sander's conclusions about the effects of affirmative action in law schools. Prof. Sander has an abridged version of his findings at Volokh beginning here.

I'm not taking issue with the effects of affirmative action or any of the traditional debate around the issue (suffice it to say I find Prof. Liu's points persuasive, while Prof. Sanders raises some tough questions about means and ends of affirmative action). And this may come as a heresy to some on the Left Coast, but I for one think affirmative action is a noble idea, but it's inherently flawed. I'll let that statement speak for itself.

My main concern is with the more global issue at stake. Those opposed to affirmative action (or even Rick Sander who's not opposed per se) work on the assumption that a pure academic merit system is the best. THAT is what I want to question. Simply put, why should access to legal education be limited to GPA and LSATs? Now before any libertarian or underachieving white males (kidding) dismiss this question as preposterous, I ask that you lend me your ears.

MAYBE, if our goal was to create the best legal thinkers possible, i.e. academics, I might see such a constraint in admissions as, well, admissable. But we're not. In a profession that's heavily based on writing ability, candidates are only evaluated on a three-page max personal statement (I dare not count the writing section of the LSAT). Going further, there's been considerable discussion in the blogsphere regarding the nature of legal education as a whole, with some calling for more practical training. Again, if our goal is not to train the best legal thinkers but the best lawyers, then why aren't clinical programs a core part of the training? Would GPA and LSAT scores continue to be the best predictors available if for example half of a law school's curriculum was clinical?

Those are all questions I'm throwing out there, but fundamentally, I don't see legal education as an exercise in intelligence but more as a right of passage to gain access to a commodity...a very precious commodity. In this age of the regulatory state, I really can't imagine anyone arguing that a knowledge of the law is meaningless. Al Pacino had a line in the movie "The Devil's Advocate" where he said something to the effect, "We're the new clergy." I think it's a somewhat valid comparison. Imagine if we were in medieval Europe where access to God defined power. Who gets such access? On what basis do we evaluate those worthy of such access? WHY WAS THERE SO MUCH RESISTANCE TO LUTHER WHEN HE GAVE THAT ACCESS TO THE MASSES???Of course, everyone was more than welcome to choose a second-tier religion.

Just so we're clear, I think that there is great injustice when access to something as powerful as a legal education is denied to certain segments of society. I don't know if race-based initiatives are the answer to this, in fact, I'm fairly sure they're not. But I'm even more certain that the traditional merit-based only systems proposed by those opposed to affirmative action, are without...dum dum dum...merit.

[UPDATE: In re PG's Post above, replace every time I say legal education with good legal education as defined by the profession. That is all.]

December 19, 2004

Today / December 20

Today in Anti-Discrimination History (1976) - SCOTUS announces its decision in Craig v. Boren, holding that generalities about aggregate groups did not suffice to overcome the Equal Protection Clause. Twenty three years later, Vermont's Supreme Court rules that homosexual couples are entitled to same benefits and protections as married heterosexual couples.

Alternative Careers

Usually, those symposia on alternative careers held at law schools talk about public interest, academia or -- big stretch -- journalism. The implicit assumption is now that you have that JD, you're going to use it somehow, even if it's not at a law firm. But what about those of us who fail out after first semester, unable to comprehend Torts and remember the result in that case where the woman was attacked in the hallway and the landlord was sued? What are our alternative careers?

In this, I for once am way ahead of the pack. I may not have my outline finished, I may not know where my multilith is so I can review the articles contained therein, but I have A Plan. With two parts.

1) Get Taco Cabana franchises for the other 47 states, i.e. those other than Texas, Oklahoma and New Mexico. I actually nicked this idea from a friend who was worried about his post-clerking employment, but now that he's safely employed in a big firm, he's not going to be doing it, so I can.

That the top Google hits for "breakfast tacos" "new york city" are about Austin and Dallas-area eateries reassures me that the competition for middle of the night Mexican in Manhattan will be limited to the highly-recommended but, let's face it, mildly sketchy truck stand at 96th and Broadway.

2) Start a country music radio station in New York City. The biggest city in the United States, and it currently has none such, while Rochester, Utica, Albany (interesting disclaimer), and other towns do. I'm unclear on the market failure that resulted in this anomaly, but it must be corrected.

In both cases, I will be serving humanity much better than I would be as a lawyer. New York has eleventy billion attorneys, but a massive shortage of breakfast tacos and country music. Yes, I'll have wasted this past semester's tuition, plus all that money on law school applications and LSAT prep, but what is that compared to a wasted life?

December 18, 2004

Burn the Witch!

(Pre-emptive clarification: The following is not meant to be a smear against my law school, professor or classmates. I just thought the following was a funny coincidence.)

The night before my civil procedure exam, I was talking to some fellow students and it occurred to me that, in our collective stress and anxiety, we were on the verge of an incident of mass hysteria and delusion in which we would attack someone. Scholarship on the Salem witch trials -- aside from that which blames the incident on chemicals in the food or water -- frequently examines the psychological conditions that led so many people to believe that they were the victims of supernatural attack. I jokingly remarked that my class may be capable of similar neurosis.

Well, we almost went after the proctors on Wednesday, but the dean came in and calmed us down. It was very close though. The proctors were sitting by the doors in case they had to run for it.

We were about to start our civil procedure exam, and the person reading the instructions said, "You are not permitted to use notes or commercial outlines."

It was like our heads spun around. "We're allowed to use our own outlines, right?"

"No, only the course readings."

There was mass outrage. We were already edgy because construction workers were hammering on our end of the building. We'd had two previous exams in which we were allowed to use whatever we wanted as long as it was printed out. I'd brought commercial outlines, my notes, my TA's notes... and I was going to fail without them. Most of my classmates were a bit better prepared, but not by much, and certainly not by as much as they felt was necessary.

For ten very tense minutes, the students and proctors waited for the dean to come clarify. The professor couldn't be consulted because he's in South Africa.

The dean walks to the front of the room. We're all staring at her, kind of vibrating in our seats. (I personally may have added to this problem by bringing a bag full of chocolate candy to share with my classmates, of which they had availed themselves fully.) So there were about 50 young people ready to leap for her throat if our grades were endangered.

The dean says, "If anyone here believed that he or she was NOT allowed to use materials other than the course readings, raise your hand." We're so screwed in the head at this point that it takes us a minute to figure out the question. She goes on, "I don't want anyone to have come to this exam thinking that she only got to use the course materials and therefore didn't bring notes or outlines." No one raises his hand; if someone had, I think that person would have been the witch burned. So the dean says, "OK, use whatever you have." We give her an ovation as she leaves the room, but it was so close.

We hadn't gotten affirmative instructions for this particular exam that said we could use our notes, but it had been permitted every other time. I don't think there was any such person who thought he could use only course materials, but if there was, he knew better than to speak up. We would have turned on him like a pack of rabid dogs.

I got a glimpse of how scary my classmates were when we played Blueblook jeopardy in Legal Writing, but it wasn't until this afternoon that I realized how close we are to our animal natures. I was really surprised by how ugly it was getting verbally, though; people were yelling at the proctors. We very clearly do not deal well with unexpected pressures. And I say "we" intentionally, as I was too dumbfounded to say much at the time, but probably would have been the first with a pitchfork against the person who violated our norms.

(And yes, I know that the Salem "witches" were punished by hanging, but I like the European method better.)

White Shoe

I've wondered for some time about what exactly the phrase "white shoe firm" means. My Torts professor just used it in reference to the opposing counsel in A Civil Action (which he calls "one of the best nonfiction books I've read in the last decade"). I raised my hand to ask and then put it down when I remembered that this was a review session and not supposed to be taken up with stupid non-exam related questions.

But who needs a respectable source of knowledge when there's the internet? First I consulted dictionary.com, which offered American Heritage's "Of or being a long-established business known for reputable service and a wealthy clientele: 'took a job at... [a] pronouncedly white-shoe investment-banking firm' (Connie Bruck)" and WordNet's "denoting a company or law firm owned and run by members of the WASP elite who are generally conservative; 'the politician tried to hide his white-shoe background.'"

This was the general understanding that I had of the term, but it didn't explain its origin. On to the OED, which had a very different take:

white-shoe slang (chiefly U.S.), effeminate, immature [...]
1957 J. D. SALINGER Zooey
Phooey, I say, on all *white-shoe college boys who edit their campus literary magazines. Give me an honest con man any day.
1974 G. JENKINS Bridge of Magpies vi. 85
What sort of white~shoe captain are you?
1975 N.Y. Times 22 Sept. 33/1
Covert operations can be stripped from the CIA... So can such monkey business as dropping simulated poison cannisters in the New York subways -- the games of white-shoe boys who never grew up.

Ivy League collegians. Thus a 'white shoe firm' is one primarily staffed by such individuals (rather than one which employs Jews, Blacks or other minorities). The implication is of traditionalism, stuffiness, etc. White shoe, in more general slang, and with the same etymology, means immature or effeminate. [[interestingly enough Merrill-Lynch’s present Chairman, President, Chief Executive & Chief Operating Officer is a Black graduate of Harvard Business School]].

WHITE-SHOE adjective: 1) [1975-1980] of or pertaining to members of the upper class who own or run large corporations; of the U.S. establishment: 'white-shoe bankers'; 'white-shoe law firms'; 'a conservative white-shoe image.' [from the white shoes popular as moderately formal wear among suburban men circa 1980 and also from the earlier Ivy League usage 2) a typical Ivy League student; having or affecting the dress, manners, attitudes, etc. of the Ivy League [popular at Princeton at varying intervals since circa 1915; general student use circa 1945-55 only. From the white buckskin shoes that were part of the typical student’s dress].

However, this site gives a different time period for the popularity of white shoes.

"White-shoe," as a reference to Ivy League background, is a much more accurate term to use for contemporary elite institutions than "WASP" or "good ol' boy," both of which no longer describe the set of people who currently constitute The Man. The generation that attended Harvard after the collapse of anti-minority quotas and with the advent of affirmative action is now in power, and they are frequently Jewish, Catholic and/ or female (and to a lesser extent, people of color). At the same time, the old investment and law firms still require the white-shoe educational pedigree as much as they ever did.

December 17, 2004

Today / December 18

Today in History (1944) - SCOTUS announces its decision in Korematsu v. United States. To make it topical, see Prof. Muller's call for responses to the hypo of having Muslims interned after a series of 9/11-scale attacks.

A Final's Worth a Thousand BCS Points

On Prof. Crim Law's take home final (he is visiting from Michigan) appeared the following:

"David, a University of Michigan football fan, is in a sports bar in the state of Boalt, which borders on the state of Texas, on January1, 2005, where he is happily and loudly ridiculing the "dumb Longhorns" of Texas as the University of Michigan soundly defeats the University of Texas in the 2005 Rose Bowl. Suddenly and without warning, a Texas fan, "Vic," grabs David from behind and begins smashing David's head against the bar. To free himself, David uses his elbows and his superior Michigan strength to throw Vic off, causing Vic to fall backward and strike his head on a wooden table and then upon the tile floor."

Well since those of us from the State of Boalt are generally pacifists, and quite frankly inspired by W&V's contest, I think it's time settle this Cal-Texas-Michigan BCS nightmare with a friendly wager. I'll gladly cheer for any team wearing Blue and Yellow, which means, I'll cheer my heart out for the Wolverines of Michigan come January 1. I'm sure W&V will likewise cheer for anything Orange. Maybe I should have run this by him first, but where's the fun in that?

So gentle readers, as you get hammered after finishing finals, please take the time to suggest terms for the wager, and in doing so, at least make a veiled reference to whatever conference you're school's in or geographically encompasses you just so we can tell biases. Not that they won't be self-evident.

December 16, 2004

Sick Giggle

ATLANTA (AP) -- Two months after the government recommended that scarce flu shots be reserved for people most at risk, health officials are now worried that tens of thousands of doses could go to waste, and they are considering easing the restrictions.

It turns out that the furor over the vaccine shortage and the government's response have had an unintended effect: More than half of all elderly or chronically ill adults have not even tried to get flu shots because they figured they would not be able to get one, the Centers for Disease Control and Prevention said Thursday.

UPDATE: Wait, wait. This might be the new winner, if only because right next to it is a headline for this story.

Today / December 16

Today in History (1689) - The English Parliament adopts the Bill of Rights. Eighty four years later, American colonists protest to get their own freedom from taxation without consent, by hosting (hoisting and dumping overboard) the Boston Tea Party.

Data on Homosexuals and Stop Loss

This op-ed by Nathaniel Frank. "a senior research fellow at the Center for the Study of Sexual Minorities in the Military at the University of California, Santa Barbara," begins with the same juxtaposition of news items -- gays suing over the military's policy of discharging them, and straight soldiers' suing over the military's policy of not discharging them -- that I noted in this post. However, it offers much more in the way of numbers:

This year the Pentagon approved the recall of 72 veterans in communication and navigation, but it has expelled 115 gay troops in that category since 1998; it recalled 33 in operational intelligence but has expelled 50 gays; in combat operations control, it recalled 33 but expelled 106.
Overall, the military has announced the recall of 5,674 veterans since June, but has discharged 6,416 soldiers under its "don't ask, don't tell" policy since 1998, including 1,655 since the wars in the Middle East began. The discharges covered people in 161 occupational specialties, including linguists; intelligence personnel; nuclear, biological and chemical warfare experts; artillery specialists; and missile guidance and control operators.

Perhaps the most important statistics are at the end of the piece:

But it should not require judicial action to end the ban on gays in the military. From a military standpoint, the policy is unwise. And politically, the moment may be near when public support of gays in the military makes Congressional action possible. Seventy-nine percent of the public now favors letting gays serve openly. For the first time, a majority of junior enlisted personnel support open gays in the military.

(While I was checking to see if Phil Carter had put in his two cents on the issue, I saw an interesting post from last week about what I would consider to be a similar controversy, women in front-line combat.)

Jesus, Give Up Already

December 13, 2004

A Plea to Readers

Please help me lobby for the release of Harvey Birdman, Attorney at Law on DVD. Apparently if you tell Amazon that you'd like to be notified of such a product, they aggregate the requests and tell the studio about the demand.

(If I'd gotten a useful economics degree, I probably could talk about what a cool mechanism this is for reducing information costs or somesuch, but I really just want this cartoon.)

This show has a sufficient following that the Powers That Be -- i.e., Cartoon Network -- had contemplated releasing it, but have pushed it back in favor of other releases. The current date is July 2005, but an insufficient show of interest may create further delay. Hence this plea.

December 12, 2004

There But for the Grace of Gods

I probably don't get as upset from reading the news as a blogger really should in order to fuel the daily quota of rants, but this article managed to get to me. It is about the Afsharis, an Iranian-American family living in Morgantown, WV. Their daughter Azadeh and son Hamed are honor students and participants in student government at West Virginia University, and they have a 12 year old son, born in the U.S., named Amin. Until May 5 of this year, the parents, Aliakbar and Shahla, worked at National Institute of Occupational Safety and Health, one of the biggest employers in Morgantown.

But that afternoon, their managers pulled the Afsharis aside and delivered a stunning message: they had failed secret background checks and were being fired. No explanations were offered and no appeals allowed. They were escorted to the door and told not to return.

The government refuses to tell the Afsharis what made them fail this security check despite having passed background checks when they were hired in 1996 and 1997. Their own theory is they were being linked to a group that the FBI says "is made up largely of anti-American fanatics, maintains close ties to the government of Iran and has been used as a front for Iranian intelligence. But it is not on the State Department's list of banned foreign terrorist organizations, and it operates openly in the United States."

In December 1998 and 1999, the Afshari family went to the Muslim Students Association (Persian Speaking Group) conventions, where they could "speak Persian, eat Iranian food, attend workshops on Islam and meet other Iranian-Americans at a time of the year when many Americans were celebrating Christmas." They daughter Azadeh says, "We loved it because it was a chance to meet kids from our culture. We pushed our parents to go."

I'm really hoping that the case against the Afsharis is stronger than what they'll admit, because these facts alone are unbelievably worthless as an indictment of 18-year residents of the United States who until recently would have been held up as "model minorities" and exemplars of the American dream. Well educated -- he with an industrial engineering Ph.D., she with a master's in occupational health and safety -- they did completely public research in thrilling stuff like asphalt fumes and latex gloves. They apparently assimilated well into their small town community without giving up their own cultural mores. They let their children figure out the right mix of Iranian and American in their own lives, not protesting when Azadeh chose to stop wearing a headscarf, a couple of years before she ran for homecoming queen.

In particular, the idea of attendance at what was advertised as a cultural convention being enough to hang immigrants is extremely troubling. Almost every year, my family will go to a 4th of July weekend conference for people from my parents' home state in India. It's pretty much for the same reasons that the Afsharis attended their convention, except that where they politely term it "a chance to meet kids from our culture," my parents and their peers openly say, "Maybe you'll find a nice boy there." (Presumably a Shiite convention also involves a lot less drinking than the Telegu meat market.)

Aside from a few attacks on Indians -- mostly Sikhs -- and one Hindu temple in the immediate wake of September 11, 2001, there's been little reason for me to think that 9/11 and the subsequent domestic war on terror would affect me more than it would any other American. When people talk about the loss of civil liberties and profiling of Muslims, I worry about it, but as something that happens to other people.

Somehow the Afsharis' story struck me with how close I am to being those "other people." They're so small-town, middle-class successful, education-focused and family-oriented; precisely the qualities that normally would be prized by our society, and probably how my own family and those of many of the kids with whom I grew up would be described. The difference is of a nation and a religion. The Afsharis had the misfortune of being Iranian and Muslim at a time when Iran is part of the Axis of Evil and Muslims are a suspect class. But change a couple of letters in their national origin, and add a lot of deities to their faith, and they could be my family.

I have a hard time not taking their plight almost personally, putting my parents in the place of Aliakbar and Shahla Afshari.

Two weeks ago, Mr. Afshari's unemployment benefits ran out. He has not found work, and the family is now living on savings and credit cards. Mrs. Afshari has begun dental school with Azadeh but says she does not know if they can afford the tuition. Mr. Afshari has become sullen and withdrawn, his children said. Though his father in Iran is ill, Mr. Afshari has decided not to visit him, fearing he will not be allowed to return to the United States.

I imagine how my father -- who just came back from his niece's wedding in India -- would react to being in such a situation. Should they uproot themselves and their children from what has become their hometown, in order to find employment in a bigger market? I suspect that Dad might eventually take the fighting stance that the Afsharis finally have.

Unable to clear their names or find new employment in their field, the Afsharis on Thursday resorted to that most American of recourses: they sued the institute and its parent agencies, the Centers for Disease Control and Prevention and the Department of Health and Human Services, demanding back pay and reinstatement or the chance to appeal. [...]
In their suit, they do not question the government's right to conduct background checks. But their lawyers contend that the Kafkaesque nature of the process -- in which the rules were unclear and perhaps unwritten -- has made it impossible for them to defend themselves.

Hopefully the courts will provide the Afsharis with due process, even though they are permanent residents and not citizens, and they either can be restored to their jobs or know what violation they committed.

December 11, 2004

Today / December 12

Nothing Minor About a Major

Going through the NY Times today, I noticed several letters reacting to this article by David Koeppel on college kids choosing a major.

A little context: To summarize, the article talks about the marketability of majors and how college kids choose majors blah blah blah. This has been a recent topic of news stories because of some research about average salary by major.

When I first heard of the research, I wondered (don't bother clicking link, it's all reproduced here, just another shameless self-advertisement): "what the (reverse) correlation is to the major's starting salary and its frequency among the law school ranks. This history and psychology major makes no prejudgments." To my (shock, dismay, joy, whatever), the second letter was the following:

To the Editor:

I can live with your sweeping assertion that philosophy majors like me are in for a lifetime of financial duress. But I must take exception to your portrayal of the discipline as somehow unconnected with the practical world of business.

The study of philosophy is not some quixotic, abstract escapade for lovers and dreamers. More than ever, it's about the study of logical systems and the development and defense of argument. Upon graduation, philosophy majors possess top-flight writing skills and may have even used a spreadsheet. Each year, pre-law students flock to logic classes because the class provides a solid foundation and background for the LSAT.

I'm glad that I didn't fritter away my college years worrying about how my choice of major would affect my ability to stockpile disposable income over the duration of my life. I have to say I feel prepared if ever I should aspire to the task.

Seth Barnes

Old Orchard Beach, Me.

Dec. 5, 2004

Crap! It sounds like my hunch was right. I have a lot of thoughts on this matter but not the time to lay them out. My concerns in general are the following: Why do people presume that one's major plays more of a role in one's career path than skills acquired outside the major, networking, etc.? More specifically, how many people begin the law school process because they don't know what to do with their degree (see Seth Barnes)? Related to this, I don't know how many different versions of "_______ is the best major for law school" have passed me by. At latest count the following have filled the blank ("Poli Sci because judiciary is part of government," "Philosophy because of how you think," "Engineering/Math/CS because of how you think," "Journalism because someone said it's something about how lawyers think," and last but not least, "Everyone knows the best major for law is English." Much like my personal palm reader, I don't think any of these statements have any credibility to them. Here's a thought: Maybe the secret to law school is how YOU think!

Oh and if you're an engineer and in law school, GET OUT, us liberal arts majors need the space.

December 09, 2004

Give me a break

I think I go out of my way to be an ass...and this is yet another example. I'm watching Comedy Central instead of studying. So, I'd like to prevent YOU from studying as well. It's not all that different from W&V's desire to prevent minorities from playing scattergories.

What are your plans for winter break?

Oops! Did I just put that thought in your head? You wanted to sleep all day and all night? Watch some daytime TV? Say hello to wife/kids/brothers/sisters/parents/grandparents/Bigfoot? Well whatever you had planned, good luck getting it out of your mind. Just go ahead, I dare you. Pick up Gilbert's and tell me you're not thinking about reading a mindnumbing pop magazine that requires three neurons working part-time to digest. [Added bonus to bad joke.]

Seriously though, I'm sick of the "What are you going to do this summer?" talk. If you want to emerge from caselaw land for a brief period, share your winter break plans below. If you're no longer part of the law school community, please share how you will find billable hours in a visit to (or from) the in-laws. And if you're planning on entering the law school community, please tell us how your vacation has been going thus far.

December 08, 2004

Nothing to Do with Law

Teenagers and young men should keep their laptops off their laps because they could damage fertility, an expert said on Thursday.
Laptops, which reach high internal operating temperatures, can heat up the scrotum which could affect the quality and quantity of men’s sperm.
"The increase in scrotal temperature is significant enough to cause changes in sperm parameters," said Dr Yefim Sheynkin, an associate professor of urology at the State University of New York at Stony Brook.

Today / December 9

Today in Misguided Anti-Communist Efforts (1953) - General Electric announces that all Communist employees will be discharged from the company. On the same day five years later, the John Birch Society is founded.

Today / December 8

Today in Free Trade History (1993) - The North American Free Trade Agreement is signed into law by President Bill Clinton. On the same day the following year, Clinton signs a bill enacting United States participation in the General Agreement on Tariffs and Trade. (GATT was formally signed on April 15, 1994, in Marrakesh, Morocco by 124 nations.)

A Little Darker, A Little Balder

Son, could you come in here for a second? Well, I'm sorry, but that newspaper's just going to have to wait, because we really need to talk. Son, your mother and I have been worried about you. Your grades have been slipping, you've been spending less time with your friends, and you've been shutting yourself in your room for hours at a time. Now, I know it may make you feel uncomfortable to talk about it, but this Supreme Court obsession of yours has become a problem.

My SCOTUS obsession didn't erupt fully until college, so my parents never could try to limit it, but they did ground me from reading fiction for a semester when I was in 7th grade.

December 07, 2004

Diversity on the Law Reviews: An Even Bigger Joke than the Pac-10

Amid his thinly-veiled Texas bashing, Armenaut notes that the California Law Review uses a write-on-only system to determine membership. This, combined with the impossible amount of reading I just did for a ConLaw II class on affirmative action, prompted me to think about the absurdly white state of the Texas Law Review, and to wonder if the problem is the same elsewhere.

A glance across the photo board in the law review office at Texas reveals a TLR class of 53 new members that contains one Hispanic student, one Asian student, and one student of Middle Eastern descent. That’s three out of fifty-three, only one of which would qualify as an underrepresented minority. No African-American students in sight. And the class ahead of us isn’t any better. And to this I say….WHAT IN THE EFFING EFF IS GOING ON???

The justification that I’ve been given for Texas’s write-on process (50 or so slots, 10 determined solely by the write-on, the others based on a mysterious combination of write-on, grades, and birth sign) is that it was intended to increase minority membership. This is apparently based on the ridiculous idea that, though minority students (allegedly, I have no data) perform worse on law school exams, they should perform better on a write-on essay and equalize their chances at law review. But this logic completely escapes me, because I am A) a frequent abuser of prescription drugs that contribute to cognitive impairment, and B) of the opinion that roughly the same skills being evaluated on exams (many of which are take-home affairs anyway) would be assessed on a write-on. So already, this seems like a dumb fix, and clearly doesn’t work, as it has only succeeded in allowing sexier-than-average bloggers with lamer-than-expected GPA’s to crash the law review party.

But, aside from that, based on my interactions with students in the school, I’m disinclined to think that poor minority grades or poor minority write-on performances are really the reason that our board meetings look like the Kenny G Concert From Hell. From what I can tell, only a handful of minority students even bother with the write-on in the first place. And, again, I am driven to yelling--Whence This Shit?

Now, I’m not claiming that these students couldn’t have come to the conclusion that law review is a massive waste of time, and that they’d rather work or do mock trial or play Scattergories than spend their weekends tracking down musty journals to check em-dashes. But their absence is a huge detriment to the journal, and, more importantly, I want them to suffer right along with me on those weekends. If I don’t get to play Scattergories, nobody does.

But seriously. If we’re going to believe in the argument that diversity in education is a good thing, and I think we should, then I want to know how to fix this. I know that Chris just dealt with this process in the spring, and hopefully he has some input. And hopefully everyone else on every law review in the country can tell me that this is only a problem at Texas and that it’s just one more reason we shouldn’t be in the Rose Bowl. But I'm aiming to have some input in the process next semester (I’m buying puppies for everyone on the current editorial board in hopes of upping my chances at a good position), and I’d like to know how to do a better job.

December 06, 2004

Gradation Degradation

I want to thank the powers that be for allowing me to post here as a guest-blogger. Typically I have my hands full over at Nuts and Boalts (ok that's the last shameless advertisement of this paragraph).

Ambimb pointed out yesterday a discussion going on regarding law school grading, particularly with respect to U Michigan's decision to discuss possible alternatives to the traditional A/B/C system. (Sidenote: On any given day I'd be hanged in any Pac 10 town for saying this, but I hope Michigan has a very Rosey New Year). The two sides of the issue clearly articulate their points. Adam Wolfson is for the change, while Letters of Marque is against it.

I'm only commenting on the issue because Boalt is one of the few law schools that has a modified Pass/Fail system. Conversely, this means I have no idea what it's like to attend a law school with real grades (slight correction in that I don't know anything about any grades since I have yet to take my first set of exams). Regardless, I want to lay out the system we have in place just to make sure all discussions of grading systems do not talk past each other about how any one system operates.

For any given class (aside from Legal Research and Writing and its Spring counterpart Written and Oral Arguments), a student can receive one of 5 grades: High Honors (HH, represents top 10% of class plus or minus 1 or 2 grades for small seminars), Honors (H, representing the next 30% and again plus or minus), and then we have Pass (P), Sub Pass (Sub P), or Fail (Fail) for the remaining 60% assigned at the professor's discretion. Here's the big bright line that's drawn...top 40 next 60 (keep this in mind for later). Most importantly, Boalt does not rank its students.

A lot of the concerns about competition and stress, I believe, stem from class ranking. And even Letters of Marque notes

"I think one of the huge problems with law school is this myth. It's expressed multiple times, in multiple ways. The myth goes like this: 'Only 10% of the class can be in the top 10%.' Now, you're looking at that, and you're saying, 'It's not a myth! It's a truism!' Heh. Only 10% of the class can have a GPA in the top 10%. It only becomes a truism when you define an ordinal ranking. I think that a lot of the stress of law school would disappear if people, instead of worrying about how grades made them not in the top 10%, were to instead figure out what metric should be used that put them in the top 10%."

Here's the greater myth that even she falls victim to...you need to know who's in the top 10%! Why have a top 10% at all? More accurately, why should the school sanction a gradation (see title for not so subtle humor) of its students? Let firms calculate all they want. Bottom line is the school's policies DICTATE that you're all equal as graduates of ______ School of Law (to a certain degree).

Is there enough of a gradation for firms to make meaningful decisions about whom to hire? Yes. Is there enough gradation for clerkships/teaching positions? Yes. Is there an arbitrary line between the P crowd and the H crowd? No not really. The line blurs...instead what we have is a continuum. I mentioned the 40/60 distinction earlier...but that's per class. There are countless (actually quite countable) combinations of P, H, and HH. But given the 40/60 line it's almost inevitable that everyone will have some P's and some H's (including HH). This is true with all grading systems, but again the difference is that there is no ranking and there is no number that spits out to put you in a category. Firms, judges, hiring committees can look and weigh each grade however they want, but us Boalties look at each other and in a naive sense, see ourselves.

Another Option

If you can't afford to hire someone to make you study, there's always drugs. "Studies show that more and more college students are abusing prescription ADHD drugs like Adderall and Ritalin to help them study. What do you think?"

My two favorite quotes:

From Steven Underhill, lawyer-- "Hell, I don't blame them. Back in law school, I had to take all kinds of drugs just to be able to appreciate art and music."

Dana Williams, Personal Shopper-- "When I was a kid, we didn't have drugs to help us study. If we wanted to get good grades, we had no choice but to stop getting drunk."

Military, Law and Arlo Guthrie

Interesting both individually and in combination:

Lawsuit against military 'don't ask' policy; Ex-military challenge ban on gays after Supreme Court ruling - Twelve gays who were expelled from the military because of their sexual orientation filed a lawsuit Monday challenging the Pentagon's 11-year-old "don't ask, don't tell" policy.

Eight Soldiers Plan to Sue Over Army's Stop-Loss Policy - each says he has been prevented from coming home for good by an Army policy that has barred thousands of soldiers from leaving Iraq this year even though the terms of enlistment they signed up for have run out. And each of these eight soldiers has separately taken the extraordinary step of seeking legal help.

Phillip Carter is quoted briefly in the second article and provides additional analysis here. From my non-military 1L perspective, the two big problems he perceives with the eight soldiers' suit seem, if not conflicting, to be working in different frames. On one hand, the soldiers signed a contract for a limited enlistment period but with fine print that permits the military to extend that time at its discretion. On the other hand, we're at war and the government has a lot of power, including the power to draft people to serve wholly involuntarily. The power to extend a tour of duty for someone who signed up to join appears much smaller by comparison.

But I can't find a common legal territory between the two. The first is couched in the language of contract, in which choice waxes large. The soldiers are unlikely to get their bargan ruled unconscionable. Neither their status nor the government's behavior during the bargaining is incompatible with a valid contract, and the government's pay and benefits surely would count as adequate consideration.

The question of whether the government has breached its end of the deal is more interesting. I wonder whether soldiers who are forced to forego the compensation they would have received from the civilian jobs they expected to enter upon the end of the contracted tours of duty, or who otherwise made plans in reliance on that end, might sue for expectations damages. (Yes, I have my contracts final on Friday.)

The government's authority to retain soldiers in Iraq works in an entirely different way. Individual choice and agency are sublimated to the political process, so that if Congress authorizes military action and gives the bureaucracies within the executive the power to implement stop-loss and related policies. Again, in a context where the draft is constitutional, I just can't see a court's taking the side of volunteer soldiers.

Speaking of the draft, Arlo Guthrie offers advice to those trying to get out of military service:

Walk into the shrink wherever you are, just walk in, say, "Shrink... you can get anything you want at Alice's Restaurant," and walk out.
You know, if one person, just one person does it, they may think he's really sick and they won't take him.
And if two people do it, in harmony, they may think they're both faggots and they won't take either of them.

As a literal matter -- and even without the singing in harmony -- Carter is inaccurate in saying that there is "No Way Out." There is no honorable-discharge, retain-your-benefits way out of the military, but I don't think that in the contract frame, where specific performance is rarely the remedy for a breach, the military actually can force you to stay if you don't want to. Certainly the mindset among the soldiers who are challenging the stop-loss policy seems to be of staying within the system:

Mr. Qualls is due back at his radio post on a base north of Baghdad this coming weekend. He said he hoped a judge would issue a temporary restraining order and allow him to stay home. But if he loses, he said, he will get on that plane.

Also staying in the system are the 23 Army reservists who, lacking properly maintained and armored vehicles, refused a mission transporting fuel along a dangerous road in Iraq. Instead of court-martialing them, the military will be imposing lesser penalties like extra duties and reduction in rank.

December 05, 2004

Today / November 6

Today in History (1992) - In Ayodhya, India, right-wing Hindus demolish the Babri Masjid, a 16th century mosque, which they claim was built upon the birthplace of Lord Ram. This inspired riots immediately afterwards and has continued to be a source of violentcontroversy.

Liz Smith I Ain't

Nor Walter Winchell, but here's my best shot at gossiping about the Federalist Society New York Lawyers Chapter James Madison Award Dinner (reportedly sold-out), which honored Robert S. Smith, a former head of the FedSoc NY Lawyers Chapter who was recently elevated to the New York State of Appeals.

I feel compelled to make this report because before the dinner began, apparently someone mentioned Underneath Their Robes and seemed to be an admirer of Article III Groupie. Hopefully A3G will see fit to make some mention of the event in a rundown of Judicial Sight-ations and provide this person with the interesting sensation of reading about his/her own doings.

Call to Order by Gerald Walpin, of Katten Muchin Zavis Rosenman and Co-Chair of the Dinner Committe*;
Welcome by Master of Ceremonies James Taranto, editor of the WSJ's OpinionJournal.com;
Opening Remarks by Emil Arca of Dewey Ballantine and President of the FedSoc NY Lawyers Chapter;
Musical Interlude introduced by Nicholas John Stathis, Chairman of the FedSoc NY Lawyers Chapter;
Performance by Lynn Owen, international opera and cabaret singer formerly with Metropolitan Opera [and wife of Judge Richard Owen];
James Madison Award Presentation by Judge Dennis Jacobs, U.S. Court of Appeals for the Second Circuit and Co-Chair of the Dinner Committee*;
Remarks by Judge Robert S. Smith, New York State Court of Appeals;
Acknowledgments by Leonard Leo, Executive Vice President of The Federalist Society;
Jodi S. Balsam, Steering Committee of the FedSoc NY Lawyers Chapter.

In my observation, nothing terribly exciting occurred at the event. I thought the speeches by Judges Jacobs and Smith were both excellent and relatively non-partisan. Smith's words stuck in my mind (a week later) particularly because he appeared to be implicitly repudiating the joking admonitions of several previous speakers that he never be described by the New York Times as having grown in office.

On the contrary, Judge Smith seems to be trying sincerely to determine the correct path that he should take in this new role, rather than assuming that he's got it down already. He has had an admirably varied career: a visiting professor and lecturer at his alma mater, Columbia Law; a pro bono attorney for people on death row; and a longtime practitioner with Paul, Weiss. In his remarks, he talked about how to find the right way to read the law. One would think that this would be pretty well decided for a federalist, but Smith said he'd even read Scalia on the matter without finding a conclusive answer.

All in all, a very nice affair, even though I winced slightly at the room's great delight in an anecdote about Hillary Rodham Clinton's having been asked to leave the University Club once when she was with a gossip columnist who refused to stop using her cellphone. This is a fairly hard-and-fast rule -- everyone in the Federalist Society party who was observed using a cellphone by the Club's employees also was asked to take the conversation elsewhere. But I suppose such tales maximize conservative enjoyment.

December 04, 2004

Why Didn't I Think of This?

A Georgetown Law friend sent me this, saying "thought it was you until I saw the nyu.edu address":

Very Easy Job: Watch Me to Make Sure That I Study For Law School

Reply to: er506@nyu.edu
Date: 2004-11-04, 5:48PM EST

I'm a first year law student but I've been having terrible concentration problems. I need someone to sit with me while I study and make sure that I'm studying. Otherwise I'll waste hours surfing the internet or just thinking about random things. You can be reading the newspaper or doing your own work while you do this, you just need to be sitting at a starbucks table or other location with me. You DO NOT NEED TO KNOW ANYTHING ABOUT LAW SCHOOL to do this job.

I'll pay more for people that can tutor me in Civil Procedure, Contracts, or Torts.

December 03, 2004

Today / December 4

Today in the History of Liberalism v. Multiculturalism (1829) - In the face of fierce opposition, British Lord William Bentinck carries a regulation declaring that all who abetted suttee in India were guilty of culpable homicide. Suttee/Sati is the Hindu practice of widows' immolating themselves in their husbands' funeral pyres.

Relevance

Someone stopped by HSM today while Googling "believe in your black man," a search that eventually turns up this post about the appropriateness of Clarence Thomas's discussing, during oral arguments in a cross-burning case, the historical experience of African Americans (even though I disagreed with Thomas's position on the Virginia statute in question). Somehow I doubted that Justice Thomas was the black man in whom the searcher was interested... then I noticed that the person was at paulweiss.com, which is a fancypants law firm. So maybe Justice Thomas is the black man in whom this person wishes to believe.

Yeeeeah, keep trying with that one.

Snark aside, at least when it comes to racial issues, Thomas actually does seem to be quite interested in people's real experiences. In his Grutter/ Gratz opinions, he wrote about the problems faced by African American students who are admitted to schools with affirmative actions policies. He said that those who would have been admitted even if they had been white had to deal with their peers' assumption that they were not actually qualified, while those admitted with the aid of such policies struggled to keep up. This is not a cold legal analysis, and I'm happy to have it in the Supreme Court's record, though here again I disagree with Thomas on what the law should be.

At a recent FedSoc affair, some of the other law students in attendance described meeting Thomas at a lawyer's house, and said that he'd questioned them about what their experiences with respect to race and affirmative action. Particularly with an issue like affirmative action, where the ideal of "color blindness" and the demand for equal opportunity are in conflict and the Constitutional imperative unclear, the way in which the policy plays out in real life is important knowledge to have in mind while trying to determine its future.

December 02, 2004

The Voting Ain't Over

If you refuse to watch the Oscars, Emmys, Grammys etc. because you despise mass self-congratulation in the guise of competition, please scroll past this post.

Co-blogger Chris Geidner's Law Dork has been nominated as a Best LGBT Blog at the 2004 Weblog Awards, which just opened to the public. BoifromTroy and GayPatriot are ahead in early voting, but I'm sure that the law students, Ohioans, journalists and other cool people among De Novo/ Law Dork readers can catch Chris up to them. This is one of those polls in which you should vote 'early and often' -- you may vote once every day.

Although there is no "Best Blawg" category, please note the Volokh Conspiracy in Best Group Blog and TalkLeft in Best Liberal Blog. Also sadly missing from the Awards is a "Best International Blogging," which would have to go to lawyer and occasional lecturer Jonathan Edelstein at The Head Heeb, celebrating its second anniversary today by becoming an open forum for anyone who wishes to post there.

December 01, 2004

Solomon Again

The Third Circuit's decision to overturn Congressional legislation barring federal funding to schools that refuse military recruiters (past post on this topic) is being criticized on multiple grounds by several bloggers. Some of these are valid; others are more questionable.

Tony Rickey claims that the demands of ABA accreditation block students from attending schools that discriminate on the basis of sexual orientation, or that permit on-campus recruiting employers to do so. "Unlike the Boy Scouts, you can't just go out and set up your own law school by different standards, at least if you want your students to have easy access to the profession." While a quick read of Standard 210 gives that impression, one also should consider the ABA's actual application of it:

This Standard permits religious policies as to admission, retention, and employment only to the extent that they are protected by the United States Constitution. It is administered as if the First Amendment of the United States Constitution governs its application. [...]
Interpretation 210-3: As long as a school complies with the requirements of Standard 210(e), the prohibition concerning sexual orientation does not require a religiously affiliated school to act inconsistently with the essential elements of its religious values and beliefs. [...]
Interpretation 210-4: Standard 210(f) applies to all employers, including government agencies, to whom a school furnishes assistance and facilities for interviewing and other placement services. However, this Standard does not require a law school to implement its terms by excluding any employer unless that employer discriminates unlawfully.

So Regent School of Law, the non-discrimination policy of which does not include sexual orientation, can prohibit "homosexual conduct" (as distinct from regular "premarital sex") without fear of losing its ABA accreditation. Students who support a gay-free learning environment and/or military can attend Regent or similar institutions.

Ann Althouse goes at distinguishing law schools from the Boy Scouts at a different angle:

The law schools argue that they express themselves through modeling nondiscriminatory values. Having to accept a discriminatory recruiter on an equal basis with other recruiters, they say, interferes with their expression. That seems to me to go beyond Dale. The law school isn't choosing who will speak for them, while the Boy Scouts were choosing who will hold their leadership positions. We don't perceive the recruiters as speaking for the law school.

Tony amplifies on this idea in his post, ridiculing the notion that Columbia doesn't express great disapproval of the military's discrimination. But then one could argue that the Boy Scouts are free to express great disapproval of homosexuality while still being required not to discriminate against gays.

Althouse's attempt to put scoutmasters in a more "speaking" role than recruiters is good, but flawed by the fact that the BSA specifically prohibits scoutmasters from talking about sexuality in any form. Dale wasn't arguing for the right to tell boys that he was a homosexual and that was OK; he was arguing for the right not to be discriminated against. The same associative freedom is at work: the Boy Scouts felt that having a gay scoutmaster, even one who never talked about homosexuality, undercut their message; the law schools feel that having military recruiters, even ones that receive nothing more from the schools than the space and freedom to recruit, undercuts their message.

Power Line has a valuable pointer to Georgetown Law professor Mark Tushnet's arguments against the suit. "The litigation would have to take on two difficult issues, the scope of Congress's spending power (an unconstitutional conditions point), and the degree to which the courts should defer to Congress's judgments in matters involving the military forces."

this Court has recognized that the existence of a Government "subsidy," in the form of Government-owned property, does not justify the restriction of speech in areas that have "been traditionally open to the public for expressive activity," United States v. Kokinda, 497 U.S. 720, 726 (1990); Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.), or have been "expressly dedicated to speech activity." Kokinda, supra, at 726; Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U.S. 589, 603 , 605-606 (1967).

I doubt the Court is likely to consider law schools' disapproval of anti-gay discrimination to be as great a threat as Communism, which was the problematic view held by Keyishan.

In contrast, the judicial deferral to Congressional judgment in military matters is of long standing, even overriding the heightened scrutiny of gender discrimination. Of all the liberal lions, Brennan, in his capacity as a Circuit Justice for the Third Circuit, stayed execution of a lower court's order to make Selective Service registration apply to both men and women, on the ground that the nation faced too pressing an emergency (the Soviet invasion of Afghanistan occasioned Carter's reinstitution of the draft registry) to be slowed by the bureaucratic upheavals of making the draft gender-neutral. A 6-3 Supreme Court upheld Brennan's decision, though he himself joined Justices White's and Marshall's dissents.

Still, even Rehnquist's majority opinion in Rostker v. Goldberg admits, "None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4 Wall. 2 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919), but the tests and limitations to be applied may differ because of the military context. We, of course, do not abdicate our ultimate responsibility to decide the constitutional question..."

Part I(C) of Marshall's dissent provides rhetorical ammunition for those questioning the declaration of military necessity.

One such "safeguar[d] [of] essential liberties" is the Fifth Amendment's guarantee of equal protection of the laws. When, as here, a federal law that classifies on the basis of gender is challenged as violating this constitutional guarantee, it is ultimately for this Court, not Congress, to decide whether there exists the constitutionally required "close and substantial relationship" between the discriminatory means employed and the asserted governmental objective. [...] In my judgment, there simply is no basis for concluding in this case that excluding women from registration is substantially related to the achievement of a concededly important governmental interest in maintaining an effective defense. The Court reaches a contrary conclusion only by using an "[a]nnounced degre[e] of 'deference' to legislative judgmen[t]" as a "facile abstractio[n] ... to justify a result."

Surely the First Amendment is also a safeguard of essential liberties, and a federal law that attempts to override it also should require a "close and substantial relationship" between Congress's anti-free speech means (cutting off funding to schools that refuse recruiters) and the asserted governmental objective of maintaining a prepared military.

The Third Circuit majority opinion defines the objective even more narrowly as "recruiting talented lawyers," and declares, "The availability of alternative, less speech-restrictive means of effective recruitment is sufficient to render the Solomon Amendment unconstitutional under strict scrutiny analysis. [...] The Government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal."

The dissent invokes the heroic image of our men and women in uniform serving in the war on terror, but practically speaking the people recruited from law schools are likely to have the thankless job of prosecuting or defending soldiers who have been charged with breaches in conduct. Law students who join the military probably are going to be dealing with Abu Ghraib fallout, not making Afghanistan safe for democracy. As far as I know, the military is not suffering a shortage of legal expertise in its investigations and prosecutions, so Brennan's concern of pressing necessity does not apply.

As a matter of probabilities, I suspect that the Third Circuit ruling will not stand. But I don't think it's as indefensible as some of the criticisms of it would suggest.

Today / December 1

World AIDS Day. Today in History (1824) - Since no candidate received a majority of the total electoral college votes in the presidential election, the House of Representatives is given the task of deciding the winner, as per the Twelfth Amendment.